The Gristle

Climate Kids

Wednesday, October 31, 2018

CLIMATE KIDS: Youth climate activists and their supporters rallied outside federal courthouses around the Pacific Northwest this week in support of the 21 young plaintiffs in a landmark case against the U.S. government.

The young plaintiffs argue the federal government’s support of fossil fuels violates their constitutional rights to life, liberty and property and has failed to protect resources in the public trust for future generations.

The landmark case was set to begin in federal court in Oregon, but remains on hold while the Supreme Court decides whether it should move forward. The government has repeatedly tried to halt the case. The Court agreed to a temporary stay while it considers the Justice Department’s argument that a trial would cause the government “irreparable harm.”

The decision to delay the case at this early stage is highly unusual, but perhaps is an indication of the changing face of justice in the Trump era.

No monetary damages are sought in the Oregon case. The young plaintiffs want the federal government to implement a National Climate Recovery Plan and transition to 100 percent clean energy by 2050. The federal government argues the lawsuit is an unconstitutional attempt to use a single Oregon court to control the entire nation’s energy and climate policy—and indeed there is some foundation to that view.

A similar youth climate case against Washington state is currently on appeal. The nonprofit Our Children’s Trust has filed similar suits in all 50 states, along with the federal one.

If successful, any one of these lawsuits could result in a court order that the federal government develop and implement a plan to cut greenhouse gas emissions. If the plaintiffs lose, a trial would still present a public forum on climate change and the risks it poses to the nation. A trial could also force the Trump administration into the uncomfortable position of admitting the facts about climate change while arguing that it need not address the problem.

The government’s lawyers haven’t contested the children’s central claims—that climate change is real and is causing them harm. Instead, the lawyers have argued that the federal government is not responsible and that the court has no place ordering political branches what to do.

Yet the essence of these climate action lawsuits is that the political branches of the United States are in paralysis, laws currently on the books are being ignored or undercut by administrative policy directive, and the courts have a role to ensure that the law is followed and that ultimate justice is carried forward. Liken it to a child custody battle, in which the “politics” are very much in ferment but the court nevertheless holds a duty to the ward or trustee and has a role in ensuring issues move forward to timely resolution.

When these youth climate actions were first initiated in the Obama era, both the administration and makeup of the U.S. Supreme Court appeared benign, non-hostile, to this guiding role of the courts. Things have changed dramatically in both arenas in the past 20 months, and all of these actions could be crushed by new interpretations in a realignment of the federal courts.

The U.S. Supreme Court currently has 43 arguments scheduled for this term; and while a great number of these will involve matters that justices will no doubt find themselves in agreement upon, at least eight are controversies that will affect large swaths of the national population and involving laws that vary significantly at the state level. Decisions in these areas could dramatically change the political landscape of the United States into something unrecognizable.

Among these matters are laws that could be employed to ban abortions at early stages in a pregnancy; state voting restrictions and aggressive gerrymandering; employment discrimination based on gender identity and sexual orientation; law enforcement’s involvement in pursuing and handling undocumented immigrants; and the states’ nascent marijuana legalization laws that are in conflict with federal drug policy. Washington’s gun control laws, its efforts to attempt to price and reduce carbon pollution, and even tribal treaty and sovereignty issues could fall to this realigned court.

Even more dramatic than the realignment of the Supreme Court has been the Trump administration’s dominance of highly influential federal circuit courts, where many of these cases are heard and resolved.

Donald Trump has successfully appointed more federal appeals court judges so far in his presidency than Barack Obama and George W. Bush combined had appointed at the same point in theirs, according to data from the Federal Judicial Center. Trump has successfully appointed 43 judges, including 22 appeals court judges and 20 district judges. Dozens of other court nominees are awaiting votes in the Senate, including five in the Ninth Circuit that serves Washington and Oregon. All of these are lifetime appointments, and assure that Trump policies will endure for many decades after his presidency.

It’s an enormous windfall that resulted from protracted intransigence from Republicans in Congress who refused to confirm federal judges during the Obama presidency. But more, it is the result of successive years of low voter turnout in national elections—in 2010, in 2012, in 2014, again in 2016—that have kept control of Congress (and thereby the appointment of judges) disproportionately in the hands of underpopulated parts of the country—the Plains and Rust Belt.

This is the lasting consequence of the boycott of elections, the durable harm that arrives from successive years of not bothering to cast a ballot.
At the heart of the climate kids’ action is the belief that for them and their generation, time is running out. Their world is imperiled, there aren’t many good options, and they need someone powerful to champion their cause. Yes, that could be voters.

One needn’t look at too distant a horizon to recognize the climate kids are right.